Change Coming To Quiet UN Plant Variety Protection Agency?

Two new civil society observers were admitted last week to the Union for the Protection of New Varieties of Plants (UPOV) though whether that represents a cultural shift for the organisation or simply a procedure that has now been followed depends on who you ask. Meanwhile, a new vice secretary general prepared to take over for the first time in nearly 10 years.

UPOV is a sui generis system of intellectual property rights designed for the protection of new plant varieties. It is mostly a technical committee, discussing matters such as guidelines for determining the distinctness, uniformity and stability necessary to qualify a plant variety. But recently civil society interest has grown in the organisation as groups begin to wonder if the technical nature of the organisation is not blinding it to some of the potential social effects of plant variety protection.

The acceptance of two public interest groups as observers to UPOV at its 21 October Council meeting signals to some that this is about to change. The groups are the European Coordination of the Via Campesina (ECVC) and the Association of Plant Breeding for the Benefit of Society (APREBES).

The Council also has decided to establish a working group “to review the rules concerning observers and recommend appropriate changes,” according to its report on its decisions, available here [pdf].

“I think this acceptance of observers marks a change within UPOV away from being a ‘club’ of expert scientists, to being a body recognised as having broader societal impacts (on food policy, agricultural policy, biological diversity),” said Caroline Dommen of the Quaker United Nations Office, who has been following these issues.

But there has not really been any change to the approach of the committee, said UPOV Technical Director Peter Button, who will take over as vice secretary general on 1 December. Nor is there likely to be much change, unless the member states ask for it.

There was frustration from civil society last year when the ECVC and APREBES were told by the UPOV Council that they could not be considered for observer status until they demonstrated “competence in areas of direct relevance in respect of matters governed by the UPOV Convention”(IPW, WIPO, 10 November 2009).

Letters of support for their applications were sent by the agricultural authorities of Germany [pdf, in German], Norway [pdf], and Switzerland [pdf, in German] before this meeting of the UPOV Council.

“We believe that a well balanced group of observers representing all relevant stakeholders would be supportive for the work of UPOV. Today, farmers’ groups and organisations with knowledge and experience on agricultural biodiversity and food security are not adequately represented,” said a letter from the Royal Norwegian Ministry of Agriculture and Food.

But Button and Yolanda Huerta, UPOV’s senior legal officer, stressed to Intellectual Property Watch that the groups had never been rejected outright, and had instead simply been asked for more information. Once that information was provided, they could be accepted, Huerta said. UPOV will welcome the views of anyone who has interest in plant variety protection, said Button.

He added that as with any organisation with growing membership, his focus on the future will be to continue to ensure UPOV provides good service as a technical advisory body. UPOV shares a building with the World Intellectual Property Organization, and the WIPO Director General Francis Gurry is also UPOV’s secretary general.

Plant Variety Protection and Development

The World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement mandates that signatories to the WTO adopt a sui generis form of plant variety protection in order to become TRIPS compliant. UPOV membership is often used as a default sui generis system.

As more and more developing nations must come into compliance with TRIPS – in particular, least developed countries who have been given more of a grace period for that compliance – the concern is whether strong plant variety protection laws will help or harm the often farm-based livelihoods of poor people in poor countries.

An impact study published by UPOV showed that plant variety protection works just as much for developing countries as for developed, said Button. Many developing countries have been signatories to the agreement for several years, he added.

“It is apparent that the impact of [plant variety protection] will vary country-by-country and crop-by-crop,” says the UPOV study, published in 2005 and available here [pdf]. The study generally finds that adoption of UPOV leads to greater demand for plant variety protection, often from local breeders.

A more recent article by outgoing UPOV Vice Secretary General Rolf Jördens argues that plant variety protection is of particular interest to developing countries as it can contribute to more innovation in the agricultural sector, thereby improving agricultural performance and income for farmers, which translates into rural employment and economic development.

A study published in 2007 in Food Policy [pdf], a peer reviewed journal, is more nuanced with regards to PVP in developing countries, where there may be “dangers of establishing a PVP regime that is too rigid, reducing the flexibility required in the early stages of the development of commercial seed systems, or imposing administrative and enforcement burdens that are too costly or impossible to fulfill.”